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Tort of negligence (general and clinical) - Coggle Diagram
Tort of negligence (general and clinical)
1/what is the loss?
Property damage
like cost of repairing or replacing the car
personal injury
like paralysis / deterioration of slipped disc /
Consequential economic loss
definition = economic loss that is directly caused by personal injury (like loss of income)
2/duty of care
is there a precedent making clear that a duty of care is owed? Yes ! then apply it !
Nettleship v Weston: It is well established that a driver (road user) owes a duty of care to other road users not to cause them physical injury by careless driving.
Cassidy v ministry of health: Medical professionals owe a duty of care to patients once they have accepted them for treatment.
Baker v T.E. Hopkins & Son Ltd: Dr Baker knowingly descended into a well containing poisonous fumes in an attempt to rescue two workers and died from the fumes. Dr Baker was owed a duty of care as it was reasonably foreseeable that someone would seek to rescue the workers in danger.
Robinson v Chief Constable of West Yorkshire Police: The police owe a duty of care to the public to protect them from reasonably foreseeable
physical injury when carrying out an arrest.
Kent v Griffiths & Others: The ambulance service (regarded as part of the health service) owe a duty of care to respond to a 999 call within a reasonable time
Capital and Counties plc v Hampshire County Council: The fire brigade owes no duty of care to attend a fire but if they do attend a fire, they owe a duty not to make the situation worse through a positive act
Alexandrou v Oxford: The police owe no duty of care to respond to emergency calls
Smith v Littlewoods Organisation Ltd: as a general rule, there is no duty for failing to prevent a third party from causin harm.
Exception 1: Where there is a statutory duty
Exception 2: Where there is a contractual duty > Stansbie v Troman [1948]: The defendant decorator owed a duty of care to lock the claimant’s property when he left and owed a duty of care when his failure to do so allowed burglars into the property.
Exception 3: Where the defendant has sufficient control over the claimant > Reeves v Commissioner of Police for the Metropolis: the police owed a duty to protect a prisoner from taking his own life because they had a high degree of control over the prisoner who was in their custody and there was high known risk of prisoners taking their own life.
Exception 4: Where the defendant assumes responsibility for the claimant > Barrett v Ministry of Defence: a duty of care arose when a naval officer started to help the victim when he got drunk but then left him unattended and he choked to death on his own vomit. Interestingly, if the naval officer had never started to help the victim. ----- also Jebson v Ministry of Defence [2000]: the drunk claimant soldier was injured whilst returning from a night out organised by his camp commander. The claimant tried to climb onto the roof of a moving lorry, lost his footing and fell. The commander owed the claimant a duty of care by impliedly assuming responsibility for his safety on the return trip and was in breach of this duty given the lack of suitable transport and supervision ----- also Phelps v Hillingdon London Borough (2000): A duty of care was owed because the local authority had assumed responsibility for a child’s educational services and therefore owed a duty to provide education appropriate to the child’s needs. The imposition of liability for an omission where the party has ‘assumed responsibility’
Exception 5: Where the Defendant creates the risk > Goldman v Hargrave: the defendant was held liable for a naturally occurring fire that started on his land where he knew or ought to have known of the danger and failed to take reasonable steps to mitigate that danger.
No clear precedent ? apply Caparo Test.
Caparo test in general:
1/Was the harm suffered reasonably foreseeable?
2/Was there proximity between claimant and defendant?
3/is it fair, just and reasonable to consider a duty?
In liabilities for omission
general rule: Smith v Littlewood (there is no liability)
1/Was the harm suffered reasonably foreseeable?
2/Was there proximity between claimant and defendant?
the five exceptions that apply to Smith v Littlewood (explained above)
3/is it fair, just and reasonable to consider a duty? ----- Hill v Chief Constable of West Yorkshire [1989]: The court considered that the threat of liability in cases like Hill might lead to the police adopting defensive practices and may result in both a waste of resources and inefficient use of police manpower. The courts were concerned about the floodgates opening for claims against the police if they could be sued in negligence for failing to apprehend a criminal.
in liabilities for acts of third parties
general rule: smith v. littlewood (there is duty of care)
1/Was the harm suffered reasonably foreseeable?
Exception 3: Where the defendant created the danger -- Stansbie v Troman [1948]
Exception 4: The risk was on the defendant’s premises ------ Smith v Littlewoods [1987]: vandals broke into the defendant’s derelict cinema and started a fire which caused damage to the claimant’s neighbouring property. The defendant owed no duty of care to abate the danger because they did not know of the danger nor was the danger foreseeable – they had no reason to suspect the vandals’ entry
Was there proximity between claimant and defendant?
Exception 1: Where there is sufficient proximity between the defendant and claimant
Stansbie v Troman [1948]
Home Office v Dorset Yacht [1970]: The borstal boys were left unsupervised and attempted to escape the island using the claimant’s yachts and damaging them in the process. The court held that there was sufficient proximity between the claimant and defendant – the claimants were identifiable victims at particular risk of damage over and above the public at large. The borstal boys had a history of escape and the claimant’s yachts were the only way they could escape the island.
Swinney v Chief Constable of Northumbria [1999]: The Court of Appeal found sufficient proximity between the claimant and the police –it was known by the police who might be harmed as a result of their negligence. The police had assumed responsibility to protect the claimant against the criminal she gave evidence about.
Hill v Chief Constable of West Yorkshire [1989]: The House of Lords refused to impose a duty of care as there was insufficient proximity between the victim who was an unidentifiable member of a massive group of potential victims (all women in the area) and the police.
Mitchell v Glasgow City Council [2009]: Mr Mitchell’s widow claimed the defendant owed Mr Mitchell a duty of care to warn him of the potential danger. However, the claim failed: there was not sufficient proximity between Mr Mitchell and the defendant as the defendant had not assumed responsibility for the safety of Mr Mitchell through their words or conduct.
Exception 2: Where there is sufficient proximity (a special relationship) between the defendant and third party (the party that caused the harm)
Home Office v Dorset Yacht [1970]
Hill v Chief Constable of West Yorkshire [1989]: there was no proximity between the defendant (police) and third party (the ‘Yorkshire Ripper’) as the third party was not under police care and control at the time of the killing so no duty was owed.
Palmer v Tees Health Authority [1997]: The patient had previously threatened to kill a child and after he was released, he subsequently attacked and killed the claimant’s daughter. The Court of Appeal stated that there was not sufficient proximity between the authority and patient as the patient was not under the authority’s care and control at the time the harm was committed.
3/is it fair, just and reasonable to consider a duty?
Public bodies and duty of care
same as third parties ---- CN and GN v Poole Borough Council [2019] : there is no duty of care until fall within one exception (which is almost the proximity).
is it fair, just and reasonable? ---- Rigby v Chief Constable of Northamptonshire [1985]: distinction between operational and policy matters. the police fired CS gas without considering the fire risk, and a fire resulted. The decision to equip the police with CS gas (rather than a non-flammable alternative) was a policy decision with which the court could not interfere. However, the way in which that gas was then used was an operational matter which could amount to a breach.
3/Breach of duty
1/establishing the standard of care --- How careful does a defendant need to be?
as a general rule, what a reasonable person would have done in those circumstances (Glasgow Corporation v Muir [1943])
in some cases that it is not clear enough this principle might help: the standard of care should be based ‘on the act and not the actor’. (the authority for this statement is Nettlship)
Nettleship v Weston [1971]: A learner driver was judged by the standard of the ordinarily competent driver.
Wisher v Essex AHA [1986]: It was held that a lower standard of care did not apply to those training within a profession. ---- The standard is tailored to the activity the doctor is undertaking (the act), not to their individual level of experience (the actor)
Condon v Basi [1985]: It was suggested that a higher degree of care would be required of a first division footballer than that of a local league player. Thus, the standard of care in competitive sports is objective in differing sets of circumstances.
The professional standard
Bolam v Friern Hospital Management Committee [1957]) --- a professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art
a responsible body
De Freitas v O’Brien and Connolly [1995]: the responsible body need not to be the majority. ----
the body of 11 spinal surgeon was recognised as responsible body even if their opinion was against the majority of others. they were all very experienced, with strong qualifications and leaders in the field of spinal surgery.
the opinion of the responsible body must be reasonable for court to accept: Bolitho v City and Hackney Health Authority [1997]
’State of the art’ in a professional context
Gascoine v Sheridan (1994): doctors must follow changes recognised in mainstream literature, although they need not necessarily be aware of content in more obscure journals
Failure to advise in relation to risks
Montgomery v Lanarkshire Health Board [2015]
Medical professionals are under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. A material risk is one which a reasonable person in the patient’s position would be likely to attach significance to, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to.
For children
Mullin v Richards [1998]: would a reasonable child of the defendant’s would have seen the injury?
when the defendant suffers from an illness that he was reasonable unaware of it
Roberts v Ramsbottom [1980]: negligent defendant, he was aware that his consciousness had been impaired
Mansfield v Weetabix Ltd [1998]: The standard of care was adjusted, the standard of a reasonably competent driver who is unaware that he is suffering a condition that impairs his ability to drive.
2/Has the Defendant fallen below that standard?
The Wagon Mound (No 2) [1967]: All relevant factors need to be balanced to determine if there has been a breach.
relevant factors to consider:
Likelihood of harm
Magnitude of harm
Practicality of precautions
Utility of Conduct
Usual or Common practice
Likelihood of harm (Bolton v Stone)
Bolton v Stone [1951]: The claimant was injured by a cricket ball, hit out of the cricket ground. This had happened six times in the previous 30 years and the ground had a 7ft high fence around it.A reasonable person does not take precautions against every risk, only those reasonably likely to happen.
Haley v London Electricity Board [1964]: The risk of causing injury to blind people was not so small that it should be ignored. The defendant must tailor their conduct in light of the characteristics of people who they know might be affected by their actions.
Magnitude of harm
Paris v Stepney Borough Council [1951]: Although the risk of injury was small, the consequences of the injury were significant (loss of sight). They should, therefore, have taken greater care to ensure he wore protective goggles.
Watson v British Boxing Board of Control Ltd [2001]: The body regulating professional boxing breached its duty towards a boxer by failing to provide suitable ringside resuscitation equipment and doctors, in part because the potential harm was serious brain damage.
Utility of conduct (Compensation Act 2006 s 1 and Social Action, Responsibility and Heroism Act 2015.)
Watt v Hertfordshire County Council [1954]: It was held that there was no breach by the firemen’s employer, as the risk of injury was small, and the ultimate aim of saving life justified taking the risk.
HOWEVER, Ward v London CC: it is not always the case. a fire authority was held to be liable for damage caused by going through a red light on the way to a fire
Practicality of precautions
Latimer v AEC: the only way to guarantee safety would have been to cease operating the factory, or to employ many more people to mop up spills. Neither of these precautions was justified given the small risk of injury to the claimant.
Usual or Common Practice
(Re Herald of Free Enterprise)
Exception: Re Herald of Free Enterprise: where the common practice of sailing a ‘roll-on roll-off ferry’ with the bow doors open was illogical and therefore declared negligent.
state of art
Roe v Minister of Health [1954]: The test to be applied was what a responsible body of medical opinion would know at the time of the operation and not at the time of the court hearing (1954)
causation
Factual causation
Factual causation (‘but for’ test)
Barnett v Chelsea and Kensington Hospital [1969]: but for the defendant’s breach (failing to examine), would the claimant have died at that time and in that way? Yes, on the balance of probabilities, there was more than 50% chance. then the defendant is not liable.
Wilsher v Essex AHA [1988]: one factor out of five (20%) was solely responsible for the loss. Then, the "but for" test fails.
Factual causation in clinical negligence where the breach is a failure to advise on risks --- Chester v Afshar [2004]: The claimant proved that ‘but for’ the surgeon’s failure to warn, the injury would not have occurred when it did and the chance of it occurring on a subsequent occasion (if the claimant had the operation later) was very small.
Factual causation where the ‘but for’ test cannot be satisfied
Material contribution test
Bonnington Castings v Wardlaw [1956]: the tortious dust and non-tortious dust operated together to produce the disease as medical evidence established that the disease was cumulative, caused by a build-up of dust in the lungs. The claimant was therefore successful as he could prove that the tortious dust had made a more than negligible contribution to causing his disease.
Bailey v Ministry of Defence [2008]: Due to the claimant’s weakness, she choked on her own vomit, causing brain damage.
material increase in risk
McGhee v National Coal Board [1973]: the tortious exposure to the dust materially increased the risk of contracting dermatitis. The House of Lords therefore imposed liability on the defendant on the basis that their breach had materially increased the risk of the claimant’s injury. Currently, the material increase in risk test seems to be confined to industrial disease (like Mesothelioma)
Fairchild v Glenhaven Funeral Services Ltd [2003]: it was impossible for the medical experts to say which exposure with which employer was the cause of his illness. claim succeed. The claimant could show that by exposing him to asbestos, the defendant had materially increased his risk of contracting mesothelioma.
Apportionment and multiple sufficient causes
legal causation
Acts of God or natural events
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952]: The defendant was liable for damages arising from the first collision but not the storm damage; the storm was held to be a novus actus interveniens. Natural events will not break the chain of causation if they could have been foreseen and the defendant should have taken them into account as events that were likely to happen.
Acts of third parties
Knightley v Johns [1982]: he first defendant successfully argued that the negligent handling by the police inspector broke the chain of causation between his negligence and the officer’s injury. The police inspector’s actions were highly unforeseeable.
Acts of third parties: Medical treatment
Wright v Cambridge Medical Group [2011]: the negligence should be characterised as gross or egregious so as to break the chain of causation
Acts of the claimant
McKew v Holland & Hanmen & Cubitts (Scotland) Ltd [1969]: The claimant acted very unreasonably and broke the chain of causation between the breach and broken ankle.
Wieland v Cyril Lord Carpets [1969]: The claimant had acted carefully (she had help from her son when descending the stairs). Her actions did not break the chain and the defendant was liable for her ankle injury.
4/Remoteness
The Wagon Mound (No 1) [1961]: the type of harm must be reasonably foreseeable.
broad approach
Bradford v Robinson Rentals [1967]: cold-related injury was reasonably foreseeable
Page v Smith
same type? yes, then was not remote
the damage suffered: Psychiatric harm
foreseeable damage: Personal injury generally, physical or
Narrow approach
Tremain v Pike [1969]: Injury from rat bites was foreseeable but not injury contracted by contact with rats’ urine. the disease was too remote
broad approach and narrow approach: what was the actual damage? what type of damage was foreseeable? are these both the same? if yes, then damage was not remote.
Does the Defendant need to foresee the exact way in which the damage occurs?
No (Hughes v Lord Advocate [1963])
Does the Defendant have to foresee the extent of the damage?
NO. Vacwell Engineering v BDH Chemicals [1971]: The type of damage that was foreseeable was property damage caused by an explosion. It was irrelevant that the defendant could not foresee the magnitude of such an explosion
‘Thin skull’ rule which means that the defendant must take their victim as they find them.
Lagden v O’Connor [2004]: The ‘thin skull’ rule also applies even if the damage has been aggravated by the claimant’s own ‘impecuniosity’, ie lack of monetary funds.
Smith v Leech Brain [1962]: The defendant was liable for all physical damage to the claimant (the type of damage) and this included the cancer and death (the extent of the damage). even if the claimant was vulnerable before that to cancer.
5/ defence
1/has the claimant consented to the risk?
Had capacity to give valid consent to the risks?
Reeves v Commissioner of Police for the Metropolis [2000]: The claimant did not have the requisite capacity to consent to the risk associated with taking his life.
Had full knowledge of the nature and extent of the risks?
Morris v Murray [1991]: The court held that the claimant was not so drunk as to be incapable of understanding the nature and extent of the risk, and he willingly embarked on the flight knowing the defendant was drunk and likely to be negligent.
Agreed to the risks of injury?
Dann v Hamilton [1939]: The claimant was a passenger who knew the driver was under the influence of drink but the defence of consent failed when the driver negligently caused an accident: knowing the risk did not mean that she (the claimant) had impliedly consented to the risk (ie agreed to waive any liability for any negligence on the driver’s part).
Morris v Murray: the claimant accepted a lift with an obviously drunken pilot, and so the risk of injury was so great that this was indeed the equivalent of ‘meddling with an unexploded bomb’, and an implied agreement to run the risk of injury could be established.
Agreed voluntarily
Smith v Charles Baker & Sons [1891]: Employees who know of the risks of their jobs are not necessarily voluntarily running those risks, since they may have little real option if they wish to keep their job.
Baker v T.E. Hopkins & Sons Ltd [1959]: Dr Baker had capacity, knowledge of the nature and extent of the risk and had agreed to the risk. However, the agreement to the risk was not voluntary. He acted out of an impulsive desire to save life rather than freely agreeing to the risk created by the defendant’s negligence.
consent limited by statute
Section 149 of the Road Traffic Act 1988 prevents the use of consent by motorists facing claims from their passengers. For example, a drunk driver cannot rely on consent to defeat the claim of a passenger who voluntarily accepts a lift and is injured as a result.
has the defendant contributed in the negligence? ---Jones v Livox [1952] test
did the claimant failed to take reasonable steps for their own safety
Owens v Brimmell [1977]: A passenger is guilty of contributory negligence where they knew the driver had consumed excessive alcohol
Sayers v Harlow UDC [1958]: Her damages were reduced by 25% as she failed to take reasonable care by attempting to rely on the unstable toilet roll holder.
claimants in an emergency or difficult dilemma >> Jones v Boyce [1816]: There was no contributory negligence. The claimant had acted reasonably in the situation. The defendant could not criticise the claimant’s attempts to avoid the danger created by the defendant.
when the claimant in a child >> Gough v Thorne [1966]: There was no contributory negligence as the claimant had met the standard of an ordinary 13-year-old.
rescuers
Baker v T.E. Hopkins [1959]: there was also no finding of contributory negligence. It was held that the defendant had acted as a reasonable rescuer would do
Harrison v BRB [1981]: not same the baker if the rescuer had negligently helped to create the emergency in the first place.
did this failure contributed to the claimant’s damage
if yes, The courts will reduce damages by an amount that they think is just and equitable in the circumstances (S1(1) Law Reform (Contributory Negligence) Act 1945
defence of illegality
Patel v Mirza [2016]: a claimant should not compensated for the consequences of his own criminal conduct
should discern from Delaney v Pickett [2011]: The criminal activity (the transporting of cannabis) did not cause the accident and was incidental to the negligent driving.
Patel test
step 1: Has the claimant committed an illegal (or possibly grossly immoral) act at the time they suffered their loss caused by the defendant? For example, in Ashton v Turner [1981] QB 137 the parties were escaping from a burglary when the claimant was injured by the defendant’s negligent driving. If no such illegal act has been committed, the defence does not apply. If it has, move on to Step 2.
Step 2: ‘trio of necessary conditions’
1/The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim
2/Other relevant public policy which may be rendered ineffective or less effective by denial of the claim; and
3/Whether denying the claim would be a proportionate response to the illegality.
application of trio of Patel in Henderson v Dorset Healthcare University NHS Foundation Trusts [2020]
consideration of all relevant policies in favour of applying the defence of illegality.
the issue of proper allocation of public resources
the close connection between the crime and the tortious claim
avoid inconsistency in the legal system (compensating a claimant for the results of a crime they have been found guilty of)
seriousness of the conduct
considering all the relevant policies for denying the defence of illegality.
importance of upholding duties of care
importance of providing compensation to the victims of torts
balancing of policy considerations
another example: Pitts v Hunt [1991]: The claimant knew the defendant had no licence. Sadly, they were in an accident and the defendant died, and the claimant was injured. The defence of illegality was successful; the claimant’s injury was caused directly by the illegal act, and it would have been an affront to public conscience to award the claimant damages.
6/ Damages
general damages
‘pain, suffering and loss of amenity
Loss of earnings after the date of the trial.
Cost of adapting house.
Any medical expenses that the claimant will incur after the date of the trial.
Special damages
Loss of earnings resulting from the injury up to the date of trial
Known cost of repairing the car.
Any expenses that the claimant has incurred in relation to medical care up to the date of trial.